Offshore Oil and Gas Exploratory Drilling East of ...
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Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador
FEDERAL CROWN CONSULTATION APPROACH FOR THE
REGIONAL ASSESSMENT
January 22, 2020
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Contents 1. Overall Approach ................................................................................................ 3
1.1. Purpose ...................................................................................................................... 3
1.2. Application .................................................................................................................. 3
1.3. Regional Assessment ................................................................................................. 3
1.4. Objectives of Crown Consultation for this Regional Assessment ................................ 4
2. Roles and Responsibilities ................................................................................. 5
2.1. Regional Assessment Committee ............................................................................... 5
2.2. Impact Assessment Agency of Canada ...................................................................... 6
3. Details of the Approach ...................................................................................... 7
3.1. 3.1 Evolution of the Approach ..................................................................................... 7
3.2. Crown Consultation in Relation to the Committee’s Work ........................................... 7
3.3. Specific Consultation Features ................................................................................... 8
3.4. Indigenous Groups to be Consulted during the Regional Assessment ..................... 10
4. Preliminary Consultation Assessment ............................................................. 11
5. Potential Accommodation Measures ............................................................... 12
6. Conclusion ........................................................................................................ 13
Annex A – Study Area for the Regional Assessment ............................................. 15
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1. Overall Approach
1.1. Purpose
This document sets out the approach for federal Crown consultation with Indigenous peoples1 in relation to
the conduct of a Regional Assessment as described in the Agreement to Conduct a Regional Assessment of
Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador entered into by the
Governments of Canada and Newfoundland and Labrador (“the Agreement”).
1.2. Application
This approach applies to all aspects of Crown consultation2 in respect of this Regional Assessment, from the
early planning of the Regional Assessment to the submission by the Regional Assessment Committee (“the
Committee”) of its Report to Ministers. As required, this approach also applies to Crown consultation on
contemplated federal decision making directly related to the results of this Regional Assessment.
1.3. Regional Assessment
The Governments of Canada and Newfoundland and Labrador are interested in improving the effectiveness
and efficiency of the impact assessment process as it applies to oil and gas exploration drilling off Eastern
Newfoundland, while at the same time ensuring the highest standards of environmental protection continue
to be applied and maintained. This Regional Assessment will create a framework for evaluating and
managing the effects of future offshore exploration drilling projects in this region that will:
build upon the experience and knowledge gained in assessing previous projects;
enable effective management of environmental effects;
reduce consultation burden on Indigenous communities and stakeholders; and
result in more efficient project reviews for exploration programs.
The Regional Assessment will use best available science and Indigenous knowledge and will include
consideration of the known physical, biological, social and economic characteristics of the Regional
Assessment Study Area (see map at Annex A).
1 For this document, “Indigenous” has the same meaning as “Aboriginal” as per the Constitution Act, 1982. 2 References to Crown consultation throughout this document refer to the potential common law duty to consult
obligations pertaining the Government of Canada (federal Crown).
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1.4. Objectives of Crown Consultation for this Regional Assessment
The approach to Crown consultation for this Regional Assessment has the following objectives:
build awareness and understanding amongst Indigenous peoples of how the federal Crown intends to
meet any potential legal duty to consult that may arise from this Regional Assessment and/or future
contemplated Crown conduct in the Study Area with respect to offshore oil and gas exploratory drilling;
clarify the role of the federal Crown in undertaking consultations with Indigenous peoples in part through
reliance on the participation of Indigenous groups in the Regional Assessment;
delegate procedural aspects of Crown consultation to the Regional Assessment Committee in a manner
consistent with the Agreement and the Regional Assessment Committee’s Terms of Reference; and
fulfill any potential duty to consult by:
actively encouraging the participation of potentially affected Indigenous groups in the conduct of the
Regional Assessment, including as part of the associated Technical Advisory Group;
consulting with Indigenous groups on the Committee’s draft Regional Assessment Report; and
conducting a meaningful and responsive two-way dialogue on issues raised following the conclusion
of Regional Assessment, including the potential application of this Regional Assessment to the
development of Regulations or future decisions pertaining to exploratory drilling projects in the Study
Area.
Crown consultation will be conducted in a manner consistent with the honour of the Crown and at an
appropriate level, taking into account the nature and scope of potential or established Aboriginal and Treaty
rights and potential impacts on those rights arising from future decisions pertaining to exploratory drilling
projects in the Study Area.
The Government of Canada remains committed to the approach outlined in the February 2018 Consultation
Paper on Approach to Revising the Project List3, and reflected again in the May 2019 Discussion Paper on
the Proposed Project List4. The approach proposed in these consultation papers is to exempt offshore
exploratory wells from undergoing a project-specific federal impact assessment in areas where a regional
assessment has been carried out and where the proposed project conforms with the conditions for
exemption as approved by the Minister for that regional assessment.
Crown consultation for this Regional Assessment will remain flexible based on any feedback received from
Indigenous groups. The aim is to ensure the overall approach to Crown consultation takes into account that
the Regional Assessment could serve as a strategic planning tool to inform future decisions pertaining to
offshore exploratory drilling in the Study Area.
3 https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/consultation-paper-approach.html 4 https://www.impactassessmentregulations.ca/8869/documents/15938/download
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2. Roles and Responsibilities
2.1. Regional Assessment Committee
As described in the Agreement to conduct the Regional Assessment, a Committee has been established by
the federal Minister of the Environment, with the mandate to carry out a Regional Assessment under the
Canadian Environmental Assessment Act, 2012 (CEAA 2012). The Committee has all the powers and
obligations set out under section 77 of CEAA 2012.5
The Committee will use its knowledge and experience to conduct a Regional Assessment of the effects of
existing and anticipated exploratory drilling in the eastern portion of the Canada - Newfoundland and
Labrador Offshore Area. Pursuant to s.4.18 of the Agreement, the Committee may receive information from
Indigenous peoples on the nature and scope of any rights protected by section 35 of the Constitution Act,
1982, in the area of the Regional Assessment, as well as information on the potential adverse effects that
exploratory drilling may have on these rights.
Assisted by a Task Team and Technical Advisory Groups, the Committee will carry out the following
activities described in further detail in the Agreement, as well as consider the specific factors outlined in
Appendix A of the Agreement:
engage Indigenous groups and others that have knowledge relevant to the Regional Assessment or
whose interests and uses may be affected by exploratory drilling;
analyse all information received from Indigenous communities and other participants and identify
potential effects, mitigation measures, any information gaps and recommendations to address these
gaps, as appropriate;
document the results of the Regional Assessment in a Report including provision of advice to Ministers
on how the results of the Regional Assessment could be used to inform future decisions related to
offshore exploration drilling in the region; and
consider comments received from the public and Indigenous groups on the draft Report to federal and
provincial Ministers.
5 On August 28, 2019, the Impact Assessment Act (the Act) came into force, creating the new Impact Assessment Agency of Canada (the Agency) which replaces the former Canadian Environmental Assessment Agency.
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2.2. Impact Assessment Agency of Canada
The Impact Assessment Agency of Canada (Agency) is responsible for ensuring an appropriately scaled and
flexible Crown consultation process is applied with respect to this Regional Assessment. The Agency is also
responsible for documenting and communicating the consultation process on behalf of the Government of
Canada (federal Crown) in anticipation that the Regional Assessment will be relied upon by decision makers
in future, to inform federal policies, regulations or project-based decision making in respect of exploratory
drilling projects proposed within the Study Area.
The Regional Assessment conducted by the Committee is the primary means by which the Crown intends to
gather information about the potential impacts of proposed offshore oil and gas exploratory drilling projects in
the Study Area on the exercise of existing or asserted Aboriginal and Treaty rights. As part of the
Committee’s Task Team, Agency staff will support the Committee in engaging Indigenous communities, and
will coordinate the participation of other federal government departments as required.
As Crown Consultation Lead on behalf of the Government of Canada, the Agency will also coordinate
research and analysis required to inform whether and to what extent, a legal duty to consult may apply to the
conduct of the Regional Assessment itself, or to potential future federal decisions that may rely on aspects of
the Committee’s findings and recommendations. As required, the Agency may compile a separate summary
report of Crown consultations to advise Ministers following the conclusion of the Regional Assessment. The
Agency would consult Indigenous groups on the content of that report as appropriate.
Agency staff will lead and coordinate any Crown consultation on behalf of the Government of Canada to
ensure continuity and consistency with existing Crown-Indigenous relationships. The Agency’s National
Programs and Crown Consultation Operations Divisions will offer strategic advice and support throughout
the Regional Assessment.
The Agency’s Crown Consultation Lead will be the principal Government of Canada official consulting with
Indigenous groups in respect of the Regional Assessment. The Agency tasks its Crown consultation
practitioners to maintain accurate records of each discussion with an Indigenous group. The Crown
Consultation Lead may use a variety of means to consult with groups such as written correspondence,
observation of Committee-led Indigenous engagement sessions, provision of opportunities to review and
comment on draft documents such as the Committee’s Report, and teleconferences or in-person meetings
as appropriate. To ensure an effective and efficient process for all participants, the Crown intends to rely on
Indigenous participation in the Regional Assessment as well as any information provided by Indigenous
groups to the Committee during the Regional Assessment.
In support of the Committee’s work, the Crown Consultation Lead will be authorized by the Agency to
discuss any matter raised by an Indigenous group during this Regional Assessment, including concerns with
proposed exploratory drilling projects and their potential effects, potential impacts on Aboriginal and Treaty
rights, potential accommodation measures for those impacts, and any other interests.
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3. Details of the Approach
3.1. Evolution of the Approach
The Agency recognizes that each Indigenous group may have unique interests regarding the Regional
Assessment and any potential future decisions relating to proposed offshore exploratory drilling projects. The
Agency’s approach is to consult proactively and broadly with all potentially interested Indigenous groups in
the Atlantic Region and eastern Québec, in a spirit of collaboration and mutual understanding.
The Agency began considering its approach to Crown consultation in 2017 when it first contacted
Indigenous groups throughout Atlantic Canada to introduce the Regional Assessment, proposed as the first
Regional Assessment conducted under CEAA 2012.
The application of the Regional Assessment concept to the eastern portion of the Canada - Newfoundland
and Labrador Offshore Area offers a proactive planning tool that can be used to gain a better understanding
of the potential effects of exploratory drilling projects on the environment, and on the interests of Indigenous
peoples, the public and a other stakeholders in the region.
Given the high degree of interest expressed by Indigenous groups in the proposed Regional Assessment, in
September 2018 the Agency provided a draft version of the Agreement and formally requested comments
from Indigenous groups and the public. To support this review, the Agency provided funding to each
Indigenous group identified as potentially having an interest in the Regional Assessment. Comments
received from Indigenous groups on the draft Agreement were considered during the finalization of the
Agreement and posted on the Canadian Impact Assessment Registry.
Following the establishment of the Committee in April 2019, the Agency shared a draft version of this
Consultation Approach document with the Committee to help inform its own program of Indigenous
engagement for the Regional Assessment. In May 2019, the Agency wrote to each Indigenous group
identified by the Crown for consultation during the Regional Assessment, and invited comments on the draft
Consultation Approach. The Agency also shared the draft Consultation Approach with the Government of
Newfoundland and Labrador in May 2019. No specific comments were received as of the end of 2019.
The Agency updated the Consultation Approach to reflect the evolution of legislation and anticipated
regulations in respect of Regional Assessments pursuant to the Impact Assessment Act, and shared the
updated Consultation Approach with Indigenous groups participating in the Regional Assessment.
3.2. Crown Consultation in Relation to the Committee’s Work
The Government of Canada has adopted a whole-of-government approach to Crown consultation. This
approach involves federal authorities working together, and with other jurisdictions where appropriate, to
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ensure the legal duty to consult with Indigenous groups is fulfilled in advance of federal decisions which may
adversely impact the exercise of Aboriginal and Treaty rights recognized and affirmed under Section 35 of
the Constitution Act, 1982. The Crown also consults for good governance such as to inform sound policy-
making and the drafting of regulations, as well as for a variety of other relationship building and reconciliation
objectives.
On this basis, Crown consultation will rely on the information gathered through the Committee-led Regional
Assessment, with additional consultation activities as appropriate following the Regional Assessment Report.
Crown consultation in the context of this Regional Assessment represents a new form of Crown-Indigenous
engagement, with different approaches used than for consultations integrated into regulatory and project-
based environmental assessment processes.
For this Regional Assessment, the Crown will be guided by federal policies including the Updated Guidelines
for Federal Officials to Fulfill the Duty to Consult (2011) as well as the Principles respecting the Government
of Canada’s relationship with Indigenous peoples (2017). These policies recognize that the honour of the
Crown must guide the conduct of the Crown in all of its dealings with Indigenous peoples.
The Crown anticipates that the Regional Assessment will provide an open and transparent venue for
Indigenous groups to bring concerns, comments and/or information forward to the Committee in a spirit of
shared interest and mutual respect and understanding. Indigenous groups are therefore encouraged to bring
information forward for the Committee’s consideration on the nature and scope of any applicable rights
protected under Section 35 of the Constitution Act, 1982, as well as information on the potential adverse
impacts that exploratory drilling may have on the exercise of Aboriginal and Treaty rights.
Indigenous groups are also invited to propose appropriate measures to avoid, eliminate or mitigate such
potential impacts on Aboriginal and Treaty rights. Information provided to the Committee will be used in
consideration of the impacts that exploratory drilling in the Study Area may have on any Indigenous group
and on the exercise of their rights. This information may also inform the Crown for consultation purposes,
currently or in the future.
3.3. Specific Consultation Features
Crown consultation takes place on a continuum, and this Regional Assessment represents an early planning
process, which may inform future Government decisions about offshore exploratory drilling projects in the
Study Area. Table 1 summarizes the three phases of consultation in respect of the Regional Assessment,
with specific features of each phase described below.
1. Consultation on the process:
potentially interested Indigenous groups are identified, and their input is sought on the draft
Regional Study Agreement and Terms of Reference for the Regional Assessment Committee
and Technical Advisory Group;
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ongoing feedback and dialogue with the Crown may include sharing views on the Crown’s overall
approach to consultation for the Regional Assessment (i.e. previous draft of this document); and
financial support to participate in the process is provided through the Agency’s participant funding
program.
Note: this period commenced in 2017 when the Agency initially contacted Indigenous groups to
introduce the Regional Assessment and offer funding, and concluded in March 2019.
2. Indigenous community participation opportunities during
the Regional Assessment:
financial support provided through the Agency’s participant funding program;
Indigenous community representatives may participate in discussions of and receive and provide
information through the associated Technical Advisory Group;
engagement of Indigenous groups by the Committee may include participation in community
meetings, open houses or other forms of engagement to be defined through discussions between
the Committee and Indigenous groups; and
opportunity will be provided to review the draft Regional Assessment Report and submit
comments to the federal Crown (and share with the Committee for its consideration).
Note: this period commenced in April 2019 with the finalization of the Agreement and the
appointment of the Regional Assessment Committee, and this period will conclude once the
Committee’s Final Report is released.
3. Potential consultations following the Committee’s Final
Report:
After the Committee submits its Final Report to Ministers, Crown consultation will include notifying
Indigenous groups when the Report is available, as well as any potential follow-up to the Report.
The Agency will provide advance notification of consultation opportunities, and may develop a
separate summary report and/or briefing for Ministers based on the results of these consultations.
The intent of post-Committee Report consultations carried out by the Agency on behalf of the federal
Crown will not be to repeat or duplicate the work of the Committee. Post-Committee Report
consultation activities will focus on identifying any outstanding concerns, seeking input from
Indigenous groups on their experience participating in the Regional Assessment and engagement
process, and recommendations from Indigenous groups on how to apply the findings and
recommendations in the Report to proposed Ministerial Regulations.
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It is anticipated that the federal Minister of the Environment will use the Report and the results of
consultation, to inform a proposed Ministerial Regulation. The Regulation would set out the terms
and conditions under which a future exploratory drilling project offshore Eastern Newfoundland could
be exempted from federal impact assessment.
Terms and conditions for exemption may include specific mitigation measures and follow-up
requirements for future projects in the Study Area. Once a Regulation is put in place, an offshore
exploratory drilling project that conforms with the terms and conditions specified by Regulation would
not require a federal impact assessment as it would not be considered a designated project under
the Impact Assessment Act.
3.4. Indigenous Groups to be Consulted during the Regional Assessment
The Agency has established a broad scope of consultation for the Regional Assessment based on a good
governance approach, and in recognition that Indigenous communities throughout the Atlantic Provinces and
eastern Québec exercise potential or established Aboriginal and Treaty rights that may be affected by
exploratory oil and gas drilling and associated activities offshore Eastern Newfoundland Labrador.
The following Indigenous groups have been identified as having a potential interest in this Regional
Assessment:
Nova Scotia
Kwilmu’kw Maw-Klusuaqn Negotiation Office (representing 11 Mi’kmaq First Nations of Nova Scotia:
Acadia First Nation, Annapolis Valley First Nation, Bear River First Nation, Eskasoni First Nation,
Glooscap First Nation, Membertou First Nation, Paqtnkek Mi’kmaw Nation, Pictou Landing First Nation,
Potlotek First Nation, Wagmatcook First Nation, We'koqma'q First Nation)
Millbrook First Nation
Sipekne'katik First Nation
New Brunswick
Mi'gmawe'l Tplu'taqnn Inc. (representing 8 Mi'gmaq First Nations of New Brunswick: Fort Folly First
Nation, Eel Ground First Nation, Pabineau First Nation, Esgenoôpetitj First Nation, Buctouche First
Nation, Indian Island First Nation, Eel River Bar First Nation, Metepenagiag Mi’kmaq Nation)
Elsipogtog First Nation
Wolastoqey Nation in New Brunswick (representing 6 Maliseet First Nations: Kingsclear First Nation,
Madawaska Maliseet First Nation, Oromocto First Nation, Saint Mary’s First Nation, Tobique First Nation
and Woodstock First Nation)
Peskotomuhkati Nation at Skutik (Passamaquoddy)
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Prince Edward Island
Mi’kmaq Confederacy of Prince Edward Island (representing Abegweit First Nation and Lennox Island
First Nation)
Newfoundland and Labrador
Innu Nation;
Nunatsiavut Government
NunatuKavut Community Council
Qalipu First Nation
Miawpukek First Nation
Québec
Mi’gmawei Mawiomi Secretariat (representing the Mi’gmaq of Québec: Listuguj Mi'gmaq Government,
La Nation Micmac de Gespeg, and Micmacs of Gesgapegiag)
Première Nation des Innus de Nutashkuan
Conseil des Innu de Ekuanitshit
The Indigenous groups identified for consultation may change as more information becomes available during
the Regional Assessment.
4. Preliminary Consultation Assessment
A preliminary consultation assessment was undertaken by the Agency based on publicly available
information, recent environmental assessments in the Atlantic Region, and in collaboration with other federal
departments and agencies. The purpose of this preliminary assessment is to understand, in an initial way,
the potential for adverse impacts of offshore exploratory drilling projects in the Study Area, in respect of each
Indigenous group’s asserted or established Aboriginal or Treaty rights. Crown consultation is not a process
through which the Government of Canada will recognize asserted Aboriginal rights.
The Agency’s preliminary assessment is a planning tool used to inform the initial scope and design of the
consultation process. Any new information made available to the Crown by Indigenous groups throughout
the Regional Assessment or other consultation processes may require modifications to the Crown
Note: The Qalipu and Miawpukek First Nations have been identified by the federal Crown as asserting Aboriginal rights, and as such will be included in the overall scope of consultation in respect of a good governance approach.
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consultation approach. Any changes will be clearly documented and shared with the applicable Indigenous
groups.
Potential exploratory drilling projects in the Study Area would be located far offshore and not within any
known traditional territories. The environmental effects from such activities have been characterized in
several project-specific environmental assessments as being of low magnitude. Therefore, the likelihood of
adverse impacts on Indigenous communities as a result of these projects is considered for the preliminary
consultation assessment to be low. The Agency has therefore identified consultation at the lower end of the
Haida spectrum to be an appropriate starting point for the Regional Assessment.
5. Potential Accommodation Measures
Consideration of potential accommodation measures for Indigenous groups is an important element in
meeting the duty to consult when there exists the potential for impacts to occur on Aboriginal and/or Treaty
rights as a result of contemplated Crown conduct.
Should it be determined that the Regional Assessment could enable decisions that would result in potential
adverse impacts on Aboriginal or Treaty rights, the Government of Canada will seek to ensure that
recommended accommodation measures are appropriate to address these potential impacts.
Potential accommodation measures could include:
proposed regulatory terms and conditions specific to projects in the Study Area;
relevant federal laws, regulations, measures, policies or practices; and
industry-wide and/or region-specific commitments and/or project-based mitigation.
Throughout the Regional Assessment and Crown consultation process, Indigenous groups are encouraged
to propose potential mitigation and other accommodation measures that could address potential impacts on
Aboriginal and Treaty rights.
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6. Conclusion
The Agency will implement this Approach on behalf of the federal Crown in a manner that fulfills the
principles and commitments outlined, along with the related Government of Canada objective of
strengthening and renewing its relationships with Indigenous peoples in Canada.
The Agency looks forward to supporting the Committee in its work, and carrying out a meaningful,
informative, respectful and collaborative dialogue with Indigenous groups as part of the planning, completion
and eventual use of this Regional Assessment.
Table 1: Crown Consultation with respect to the Regional Assessment
Key Process
Step
Timeline Activities
Regional Assessment and Consultation Planning
Fall 2017 – Spring 2019
Participant funding offers and grants
Review of the Draft Agreement to Conduct a Regional Assessment, and associated Terms of Reference for the Regional Assessment Committee and Technical Advisory Group
Development of and sharing of proposed Crown Consultation Approach
Final Agreement and Appointment of Regional Assessment Committee
Conduct of the Regional Assessment by Committee
Spring 2019 – Fall 2019
Agency shares draft Consultation Approach with Committee, Government of Newfoundland and Labrador and invites comments from potentially affected Indigenous groups
Committee plans its program of Indigenous engagement, informed by Crown’s proposed approach to consultation
Indigenous groups invited to identify potential members to serve on the Committee’s Technical Advisory Group
Technical Advisory Committee membership confirmed
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Key Process
Step
Timeline Activities
Committee-led Indigenous Engagement Sessions
Begins late Spring 2019
Committee engages with Indigenous groups to build relationships, and to invite input on the scope of issues as well as information and Indigenous knowledge to inform the Regional Assessment
In-person engagement in Newfoundland and Labrador, Nova Scotia, New Brunswick, Prince Edward Island and Quebec
Review of Draft Regional Assessment Report
January – February 2020
Agency updates Consultation Approach and shares with Committee, Government of Newfoundland and Labrador and potentially affected Indigenous groups
The Committee will release a draft Regional Assessment Report for comment
Consultation on the draft Report
Public Release of Final Regional Assessment Report
End of February 2020
On completion of the Regional Assessment, the Committee provides its Report to Ministers
The federal Minister of the Environment advises the public of the availability of the Report
Follow-up on Regional Assessment, including development of Ministerial Regulation
March 2020 Consultation to inform potential Government Response and/or development of Ministerial Regulation